Misconduct outside the workplace
Dealing with misconduct in the workplace is unfortunately, an issue that most employers will have to address at one stage or another. However, employers find themselves in situations where they may have to address employee misconduct that occurs outside the hours and place of employment, i.e. misconduct which occurs on an employee's personal time.
Employers who find themselves in such a situation ought to proceed with caution, as dealing with such misconduct can often be more complex than dealing with misconduct in the workplace.
Generally, what an employee does after work should be of no concern to the employer, or should it? Employers may have jurisdiction to discipline the employee where the incident which has happened outside the workplace affects, or is perceived to affect, the company's image, operations or reputation.
Where an employee is being disciplined for misconduct outside of work, the misconduct must be one which reflects in some fashion upon the employer/employee relationship. Generally speaking there should be some direct and/or perceived connection between the misbehaviour and the workplace or the employment relationship.
If the misconduct is prejudicial or is likely to be prejudicial to the interest or reputation of the firm or can be perceived to be so, then the employer can take action. For instance if an employee is caught stealing outside of work and is convicted by the courts and the name of the company is called, then the employer has full rights to intervene and discipline the worker in whatever way deemed acceptable.
But what if the employee is found not guilty in the court. Does the company have the right to still discipline such employee? Of course, the company still has that right, once a proper investigation has been done by the company and the employee has had an opportunity to present his explanations. The fact that the employee has been found not guilty in a court of law, does not prevent the company from taking disciplinary action, as the evidence gathered during a company investigation may be somewhat wider/ less restrictive than what is acceptable in a court of law.
And does the company have to wait until the employee's misconduct case comes up in court and determined, (which can take years) before it can launch its own investigation and take appropriate disciplinary action? Of course not. The company/employer is within its right to launch its own investigation as soon as the employee's misconduct comes to its attention. It does not have to wait for the court to determine the matter.
All cases of employee misconduct outside of working hours must be investigated by the employer, whether or not the employee is charged by the police authority. For example, an employee who assaults a client of the employer at a public function, but no formal charges are pressed, but the client complains to the employer.
Employers have spent a huge amount of time, effort and resources in building a positive image of their companies in the eyes of their employees, customers and the general public, and must safeguard their "Brand" where employee misconduct outside the workplace may tarnish that image. "Reputational Risk" is a growing issue for employers to manage.
Examples of misconduct outside the workplace are wide and varied and include but are not limited to the following: drunken driving, assault, manslaughter/murder, fighting, robbery, kidnapping, using/selling illegal drugs, sexual harassment, completing fraudulent loan applications, etc.
And what about moonlighting, or the situation where the employee is carrying on his own business after working hours, and this business competes with his employer's business? Or the employee who is provided with the tools to carry on his employer's business, and who chooses to rent out these tools after working hours? For example, security personnel who are provided with hand guns to do their employer's job.
We have the recent case of two employees of a renowned daily newspaper in Trinidad and Tobago who were caught and charged with attempted kidnapping. This situation was well publicised in all media, which clearly brought the company's well-known "brand" into disrepute. The company would clearly be within its right to investigate this matter immediately and take action against these employees.
Employers must have clear guidelines and policies on misconduct outside the workplace/work hours, so that all employees are very clear on what the response of the employer will be to such misconduct that comes to its attention.
And in its investigation into any case of such employee misconduct, the company must also be aware of the innocent employee who is tragically and mistakenly the victim of a criminal charge.
Some relevant Industrial Court cases include:
a) ESD #15 of 1998 between T&T National Petroleum and OWTU. The worker was an airfield crewman and was dismissed by the company after several criminal charges were laid against him. The union took the matter to the Industrial Court and claimed that the worker was acquitted of all charges. The company's decision to dismiss was based on the serious nature of the charges, the need for the company to maintain the public's trust and its responsibility for the safety of its workers. The court found that the worker rendered himself a security risk and as such was unsuitable for continued employment.
In conclusion, it matters to the employer, what an employee does outside of his working hours. Ultimately, a number of factors will have to be carefully assessed, including the nature of the employment, the position held by the employee, the nature of the incident and its effect on the employer, customers, other employees and the general public. If it is determined that the conduct in question is such as to cause a loss in confidence in the employee, then disciplinary action, inclusive of dismissal, may be justified.